Abstract
Democracy is a fundamental principle of contemporary liberal constitutions. These constitutions nonetheless tend to qualify, moderate and limit majority rule, in order to avoid oppression over minorities. Majority rule is, therefore, legitimate provided minorities are guaranteed protection and, in some cases, the possibility of becoming majorities. Minority nations are often condemned to be permanent minorities, however. The right to exit is compared to other rights to grant voice for minority nations and contrasted with some constitutional clauses to ensure loyalty.
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Notes
- 1.
This democratic dualism will be discussed in § 14.1.
- 2.
Sorens, J. Secessionism, pp. 71, 158.
- 3.
- 4.
For a comparative distinction between majoritarian and consensual democracies, see Lijphart, A. Patterns of Democracy.
- 5.
§ 8.1 discussed Lincoln’s idea that “rejecting the majority principle, anarchy or despotism in some form is all that is left”.
- 6.
In similar vein, see Beran, H. “A Liberal Theory of Secession”, pp. 21–31.
- 7.
Moore, M. The Ethics of Nationalism, p. 90. In deeply divided multinational States, national majorities and minorities are likely to vote following their national identities (p. 125).
- 8.
See Sunstein, C.R. “Constitutionalism and Secession”. Sunstein, C.R. Designing Democracy, ch. 4. Saiz Arnaiz, A. “Constitución y secesión”.
- 9.
Mancini, S. “Secession and Self-Determination”, p. 482.
- 10.
Acton, J.E.E. “The History of Freedom in Antiquity”, in The History of Freedom and Other Essays.
- 11.
Letter to General Robert E. Lee, 4 November 1866, after the American War of Secession.
- 12.
Requejo, F. Las democracias, p. 239.
- 13.
Tocqueville, A. Democracy in America, vol. 1, chs. XIV–V. There Tocqueville also warned about the unlimited power of the majority (or the “tyranny of the majority”) as a great danger of democracy.
- 14.
Moore, M. The Ethics of Nationalism, p. 89.
- 15.
Hirschman, A.O. Exit, Voice, and Loyalty, p. 83.
- 16.
In a broad sense, the right of nullification is a legal power of a sub-State unit to make a certain provision or programme inapplicable on its territory. See, for instance, Article 33 of the Canadian Charter of Rights and Freedoms.
- 17.
See Article 50 TEU and § 8.1.
- 18.
See Articles 48 and 49 TEU, respectively.
- 19.
Hartley, T.C. The Foundations of European Union Law, pp. 8–10.
- 20.
Buchanan, A. Secession, pp. 144–6. Sunstein, C.R. Designing Democracy, pp. 101–12.
- 21.
“When any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority. For that which acts any community, being only the consent of the individuals of it, and it being one body, must move one way, it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority, or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it agreed that it should; and so every one is bound by that consent to be concluded by the majority”. Locke, Two Treatises of Government, ch. VIII, § 96.
- 22.
For example, the nullification in the form of the UK opt out from the common monetary policy, the social policy or rights, the internal passport controls, fundamental rights, etc. UK veto of any reform of the EU’s founding treaties to tackle the economic crisis which started in 2008 forced the other Member States to adopt the Fiscal Compact through two international treaties outside EU law.
- 23.
However, as long as the notification to withdraw from the Union is deemed revocable unilaterally by the Member State, the threat of exit may normalize and rise. See European Court of Justice Judgement of 10 December 2018 (C‑621/18).
- 24.
See Preamble and Articles 2, 9.2, 23.1, 29, 137, 143 of the Constitution and Preamble and Articles 1, 2, 3, 4 and 29 of the Statute of Autonomy. Historical rights could be added in the terms defended in § 4.7.
- 25.
See Articles 1, 2, 8, 167 and 168 of the Spanish Constitution. For comparative constitutional law, see Venice Commission, Self-Determination and Secession in Constitutional Law, 1999.
- 26.
See ch. 14.
- 27.
See § 3.4.
- 28.
This idea can be perceived in the background of the Quebec Secession Reference.
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Bossacoma Busquets, P. (2020). The Principle of Democracy and Secession. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_9
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